The High Court has declared that the arrangements for dealing with Upper Tribunal immigration appeals during the coronavirus pandemic are unlawful. Mr Justice Fordham held that the President of the Upper Tribunal’s guidance leans too heavily in favour of deciding cases on the papers rather than having a hearing, a situation that is “inconsistent with basic common law requirements”. The tribunal must now write to everyone who lost a paper appeal since 23 March 2020 telling them to seek legal advice. The case is Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber)  EWHC 3103 (Admin).
23 March was when the President of the Upper Tribunal, Mr Justice Lane, issued Presidential Guidance Note No.1 2020 on “arrangements during the Covid-19 pandemic”. Paragraphs 9-17 of that guidance note dealt with “making certain appeal decisions without a hearing”.
The “key question” for Fordham J was whether these paragraphs created an “overall paper norm”. In other words, was there a presumption or starting point that immigration judges should decide cases on the basis of the two sides’ written cases, without hearing oral argument? After lengthy textual analysis of the offending paragraphs, he concluded that is indeed what the guidance created:
reading and interpreting the PGN objectively and straightforwardly, as a whole, in the light of its function and purpose, and having always in mind that it was directed in its application to an audience of UTIAC Judges – the PGN does communicate an overall paper norm. The answer to the Key Question is ‘yes’.
The judgment is enormous, but that finding essentially disposed of the case: counsel for President Lane accepted that if there were an “overall paper norm”, that would be unlawful. Fordham J explains why in paragraph 5.14 of his judgment: in part, because the guidance note took its lead from a pilot practice direction from the Senior President of Tribunals, and that practice direction “does not — at source — communicate an overall paper norm”. There were also considerations of common law fairness, canvassed at length in Part 6 of the judgment.
The court’s overall conclusions:
(1) The President’s Guidance Note, directed to Upper Tribunal (Immigration and Asylum Chamber) Judges, is unlawful because it communicated that appeals should normally be decided on the papers rather than at remote hearings during Covid. That position is inconsistent with basic common law requirements which inform the overriding objective of just and fair disposal, with which Judges are duty-bound to comply. That means the Guidance Note misdescribed the effect of the Senior President of Tribunals’ Covid Pilot Practice Direction.
(2) Had the Guidance Note been consistent with those common law requirements, it would have lawfully described the effect of the Practice Direction and would have been lawful.
(3) The Guidance Note is also unlawful because it said: “The fact that the outcome of the appeal is of importance to a party (or another person) will not, without more, constitute a reason to convene a hearing to decide the relevant questions”. That is advice which (a) is erroneous in law and (b) would, if followed, lead to, permit or encourage unlawful acts.
(4) Although relevant to the other issues, no separate issue arises from the fact that the President’s Guidance Note said: “The presence of particularly complex or novel/important issues of law may also be such as to necessitate a hearing”.
(5) Because of the way the Guidance Note is written, it is also unlawful because it has omitted important factors recognised at common law which support holding a hearing. That also makes it advice which (a) is erroneous in law and (b) would, if followed, lead to, permit or encourage unlawful acts.
The first consequence of this decision is that paragraphs 9-17 of the guidance note have been withdrawn (see new version dated 19 November). The second consequence is that all immigration appellants who lost their Upper Tribunal case without a hearing from 23 March on will be told to seek legal advice on re-opening the case. Fordham J’s order provides:
(i) In all cases of a UTIAC substantive appeal (as described in paragraph 2.10 of the Judgment) where, between 23 March 2020 and the date of this Order either (a) the appeal has been determined without a hearing and in favour of the Secretary of State for the Home Department (“SSHD”) or (b) a UTIAC Judge has decided that the appeal will be determined without a hearing, the Defendant shall use all reasonable endeavours to bring to the attention of the person who is party to the appeal (and who is not the SSHD), in writing: (i) the Judgment (ii) this Order (iii) the statement: “If you have not taken legal advice on your position, you are strongly advised to do so now”; and that
(ii) The Defendant will by 4pm on Friday 27 November 2020 file and serve a letter stating by what means and in what time-frame he is approaching the discharge of the undertaking at (i) above.
It is unusual, to say the least, to have one High Court judge find that another has given orders at odds with “basic requirements of common law procedural fairness”. But President Lane can’t say he wasn’t warned: the Immigration Law Practitioners’ Association wrote to him about this as early as 2 April, saying that “we believe that the Guidance should be withdrawn”. The President’s response described ILPA’s concerns as “manifestly wrong”, “a complete misreading of the Guidance Note”, “misconceived” and “premature”.